People v. Hawkins

• Decision Date: 26 March 2021
• Docket Number: 6,KA 15-00607
• Citation: 144 N.Y.S.3d 269,192 A.D.3d 1637
• Parties: The PEOPLE of the State of New York, Respondent, v. Earnest HAWKINS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1637
144 N.Y.S.3d 269

The PEOPLE of the State of New York, Respondent,
v.
Earnest HAWKINS, Defendant-Appellant.

6
KA 15-00607

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: March 26, 2021

MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

192 A.D.3d 1637

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and the facts, the indictment

192 A.D.3d 1638

is dismissed, and the matter is remitted to Monroe County Court for proceedings pursuant to CPL 470.45.

Memorandum: Defendant appeals from a judgment that convicted him upon a jury verdict of two counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [1] [b] ; [3]) and one count of reckless endangerment in the first degree (§ 120.25). Defendant was acquitted of the remaining two counts of the indictment. The charges arose from defendant's alleged involvement in a robbery and shooting committed by a codefendant. The trial evidence established that the codefendant robbed an individual at gunpoint and that, as the codefendant walked away, the victim got into a vehicle, and the operator of that vehicle began driving toward the codefendant. The codefendant fired several shots at the vehicle in which the victim was riding, and then the codefendant got into a vehicle operated by defendant (defendant's car), which had been parked a couple of blocks away from the scene of the robbery, and defendant drove away.

Defendant contends on appeal that the evidence is legally insufficient to support the conviction or, alternatively, that the verdict is against the weight of the evidence. We agree with defendant that the evidence is legally insufficient to

144 N.Y.S.3d 271

support his conviction of counts two and four of the indictment. Count two of the indictment, charging criminal possession of a weapon in the second degree under Penal Law § 265.03 (1) (b), required the People to prove beyond a reasonable doubt that defendant either personally possessed or assisted the codefendant in possessing a loaded firearm, specifically a semiautomatic pistol, "with [the] intent to use the same unlawfully against another" ( § 265.03 [1] ; see §§ 20.00, 265.03 [1] [b] ). Initially, although defendant was charged as both a principal and an accessory, there is no dispute that defendant did not personally participate in the robbery itself and that he was not present when the codefendant robbed the victim (see People v. Eldridge , 302 A.D.2d 934, 935, 755 N.Y.S.2d 193 [4th Dept. 2003], lv denied 99 N.Y.2d 654, 760 N.Y.S.2d 118, 790 N.E.2d 292 [2003] ). Thus, defendant may be held criminally liable for the conduct of the codefendant only "if he acted with the mental culpability required for committing the underlying offense and solicited, requested, commanded, importuned or intentionally aided [the codefendant] to engage in conduct constituting the offense" ( People v. Flanagan , 28 N.Y.3d 644, 661, 49 N.Y.S.3d 50, 71 N.E.3d 541 [2017], rearg denied 29 N.Y.3d 981, 52 N.Y.S.3d 289, 74 N.E.3d 674 [2017] ; see § 20.00 ; People v. Zanders , 187 A.D.3d 1579, 1580, 131 N.Y.S.3d 473 [4th Dept. 2020], lv denied 36 N.Y.3d 932, 135 N.Y.S.3d 337, 159 N.E.3d 1104 [2020] ). Here, in a statement to a police investigator, defendant initially asserted that he did not recognize the codefendant when the codefendant

192 A.D.3d 1639

forced defendant at gunpoint to get in defendant's car and drive away with the codefendant riding as a passenger. Defendant subsequently admitted to the investigator that he recognized the codefendant's name as someone who had previously robbed defendant and his uncle and, in a recorded phone call that he made after his arrest, defendant appears to refer to the codefendant by a nickname. Nonetheless, there is no evidence that defendant and the codefendant were together earlier on the day of the robbery and shooting, no evidence that defendant had prior knowledge either that the codefendant would be armed that day or that he was intending to rob someone, and no evidence that defendant and the codefendant had an ongoing relationship (see Eldridge...